On January 29, the Utah Senate unanimously passed SB 126, which requires declared write-in candidates to pay the same filing fee that ballot-listed candidates must pay.
Such laws have been held unconstitutional in other states, in every instance. The U.S. Supreme Court said in both 1972 and 1974 that the only legitimate purpose of filing fees is to keep ballots from being crowded with too many names. Because write-in candidates’ names do not appear on the ballot, a filing fee for them serves no legitimate state purpose. Filing fees for write-in candidates were invalidated in Maryland (Dixon v Maryland State Board of Election Laws, 878 F 2d 776, 4th cir.1989) and in West Virginia (Phillips v Hechler, 120 F Supp 2d 587, 2000).
In Bullock v Carter, the SCOTUS said “In so doing, the State understandably and properly seeks to prevent the clogging of its election machinery, avoid voter confusion, and assure that the winner is the choice of a majority, or at least a strong plurality, of those voting, without the expense and burden of runoff elections.”
That says nothing about the size of the ballot paper, though of course the presence of write-in candidates and numerous on-ballot candidates were immediate contributors to the Florida 2000 debacle.
The counting of write-in votes is as time consuming as counting on-ballot votes (clogging the election machinery), and each additional candidate reduces the likelihood of the winner receiving a majority or strong plurality.
Texas, the state involved in Bullock v. Carter, does levy a filing fee for write-in candidates(with a petition alternative). Presumably this satisfies the problems with the size of the fee that was at issue in that case, and the lack of alternative filing mechanisms in other cases.
In Lubin v. Panish, it was noted that California provided for a fee for write-in candidates. Two justices (Blackmun and Rehnquist) suggested that if write-in candidates were not assessed the fee, that would have been adequate. The decision of the court in a footnote disagreed since write-in access would likely be inadequate for a would-be candidate to contest the election.
If on-ballot candidates and write-in candidates have an equal opportunity to be elected (eg if a candidate can convince a voter to vote for him; can the voter execute that vote properly and as easily, or mistakenly vote for some other candidate), what justification is there for charging on-ballot candidates a fee that write-in candidates are not?
And if write-in candidates do no have an equal opportunity to be elected, what is the point of even permitting that option?